HKSAR v. LAU SIU HING

HCMA1136/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1136 OF 2007

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J U D G M E N T

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1.  This is an appeal against conviction for indecent assault.

2.  The appellant is the stepfather of the victim.  The offence was alleged to have occurred in October of 2002, when the stepdaughter was 12 years old.  The complaint to the police occurred in September of 2006.  The allegation that was made against the appellant was that he had entered the bedroom of his stepdaughter, where, incidentally, two younger daughters were present at the time, and that he had pressed himself against her on the bed.  He pressed himself in a way that she felt pressure on her chest, and she claimed that she was aware that he had an erection.

3.  Evidence was also led of an incident in the previous month where he had asked her to massage him.

4.  The case got as far as the conclusion of the evidence and submissions before it seemed to be realised that it was only that incident of pressing and not the massaging incident that was the subject of the single charge that the appellant faced.

5.  The magistrate took the view, based on concessions made by the daughter, that no one could be sure there had been an indecent assault concerning the massage incident.  That is because the witness herself countenanced that the touching that occurred there could have been due to carelessness or accident.

6.  Let me say immediately that the idea of a 12-year-old massaging her stepfather might be thought to be unusual, but in this case, the fact was that this stepfather was in his 60s and that he was chronically ill.  He had conditions that had led him to have medical treatment for which massage had been recommended, and indeed the massage was conducted with an instrument designed to help his particular illness.

7.  He was a man who, when he came to the witness-box to give evidence, was immediately asked why he presented himself with a tic and the like.  He was someone who did not present to the court immediately as a particularly sympathetic figure, perhaps.  It is worthy of noting that, because the magistrate in his Statement of Findings decided this case basically on demeanour.

8.  The mother gave evidence, and she testified that in October 2002 there had been a complaint made to her by the daughter concerning both the pressing incident and the massage incident.  She had decided not to report the matter then to any social worker or to the police, and gave various reasons why she took that course, saying that she wanted to promote family harmony, she did not want dirty washing laundered in public, she wanted to keep the matter private within the family, and importantly she also said this, and these are her exact words in translation:  “she did not want to make a mountain out of a molehill.”

9.  It is the case that when the mother related the recent complaint concerning the pressing incident, she repeated what her daughter had told her.  That repetition did not include the significant allegation that she had been aware that the stepfather, in pressing himself against her, had an erection which he pushed against her body.

10.  The defendant gave evidence.  He remembered the massage incident but denied anything improper in respect of it; and in relation to the pressing incident, he denied that he had done anything indecent at all in that respect, and that denial was one that he had also made also to the mother when she had challenged him with it.  His reactions to the allegations that were made were ones that were perhaps understandable yet fairly curious, because, rather than confront the stepdaughter with the matter and seek to argue it out, he responded over the years that passed to it by, in effect, sniping at her by leaving messages around the place to the effect “Is massage indecency” and the like.  It was fairly curious behaviour; but, on the other hand, who knows the emotional dynamics of a family like this, and I say a family like this because this was not a happy family.  The relationship between the stepdaughter and the appellant deteriorated.  It caused problems in the relationship between man and wife, and they were such that by 2006 the wife wanted a divorce.  Matters were clearly strained in the home.  The stepdaughter knew of the potential divorce proceedings.

11.  It seems to be that it was in March 2006 - the date does not matter particularly, and there may be some doubt about it - but certainly before these matters came to the notice of the police, there was a visit made by the mother and the stepdaughter to a social worker, and the evidence of mother and daughter in this respect was that this visit was one designed to collect some evidence which would help in the divorce.  The divorce embraced dispute about such assets as there were in this family, they were not, obviously, from the papers, particularly well off, and also, perhaps more importantly, the custody of the two younger sisters of the stepdaughter.

12.  The evidence disclosed that - and this is putting it at its highest in favour of the appellant, because there was different evidence about it - that the purpose of the daughter being interviewed by the social worker was to relate the incidents about the massage and the pressing in order to explain the deterioration in the relationship between stepdaughter and stepfather which affected the marriage detrimentally.  In other words, it was seeking to point to evidence that would help the mother in the divorce.  It was clear that the stepdaughter was on the mother’s side in the matter, and it was clear from the cross-examination that she had concern about to whom the custody of her younger sisters should go.

13.  It was thus that nearly four years after the event, the recollection of the incident itself became a matter that took on new significance in a different context.

14.  The magistrate decided the case on whether or not the stepdaughter was “framing up” the appellant.  That is clear from his Statement of Findings and also from the reasons that were given by the magistrate at the conclusion of the trial.

15.  The appellant makes the point here today that the magistrate never considered the question of exaggeration.

16.  We agree that this is a rehearing and, in effect, the question of exaggeration falls for my consideration, and any error by the magistrate does not go directly to whether or not the conviction can stand but whether or not I trust the magistrate as, in effect, my eyes and ears, because he was the one who obviously had the advantage of seeing and hearing the witnesses.

17.  Was there scope for exaggeration, either conscious or unconscious or a mixture of both?  The answer is, in my judgment, that there clearly was.  Four years had gone by since the incidents in question.  The four years between the ages of 12 - 16, is a very extensive period of time to someone of that age and it has much more temporal significance than to adults later in life.  Remembering back to a short, brief incident, even if it was one that struck her significantly at the time, has to be seen as memory back through four long years of that young girl’s life.

18.  Was there scope for her to put more weight on the incident and a temptation to exaggerate it?  I judge that there was.

19.  The magistrate was faced with an unusual defendant, a man whom he described as “weird” because of the notes he left around the house and the like concerning the matter, and the evidence of a 16-year-old girl.

20.  If you make that a contest in demeanour with the “weird” defendant with his tic in the witness-box, and doubtless the pleasant demeanour of a 16-year-old girl, I am not surprised who won and who lost the contest on demeanour in the context of a frame up.

21.  The magistrate said that the evidence of PW1 had great support because of the complaint made at the time to the mother.  He did not identify the fact that that complaint did not relate the single feature that makes the conduct in the bedroom so colourable, which concerned the pushing of the erection against the 12-year-old.  That was a significant omission from the recent complaint.

22.  If you saw the case only in terms of is someone framing someone else up, then the fact of the recent complaint is clearly strong support.  If you also saw the case in terms of scope for exaggeration, then the terms of the complaint become the more significant, and the fact that the single most damaging feature of the complaint as it now stands was not made then to the mother is something that the appellant can well pray in aid in seeking to create a reasonable doubt in my mind as to the correctness of this conviction.

23.  Having heard submissions, the magistrate adjourned for two weeks and then delivered a judgment in court.  That judgment is significantly longer and different from the Statement of Findings.  The Statement of Findings does not expressly adopt what was said in the oral judgment, but that is not fatal to it; obviously they have must be read together.

24.  The Statement of Findings in fact basically relates that the case was decided on demeanour, whilst remembering that there was a temptation for the daughter’s attitude to be coloured by the divorce proceedings.

25.  Those reasons given at the time are very much longer.  They run to 14 closely-typed pages of transcript.  From reading those reasons it does not appear to me that they were read from a document that had been drafted.  They appear to have been given from what one imagines were notes.  There is a lack of precision.  It is not, I regret to say, a judgment that inspires confidence.

26.  The perfected grounds of appeal list matters of complaint about it.  Perhaps all I need just to do is illustrate one such paragraph, and it is this:

“	The defendant did not impress the court to be a reliable or a credible witness, and, as a result, the court is satisfied that the prosecution has proven reasonable doubt that the defendant has actually committed indecent assault upon PW1.”

27.  I do not suppose those words in fact do mean that the magistrate went through the mental process of merely rejecting his evidence and therefore jumping to the conclusion that guilt was therefore proved, but that is in fact what the words say.

28.  As regards demeanour in a case like this, a jury would be told that merely because someone behaves oddly and is a weird person, care must be taken not to jump from that to a conclusion that he must be guilty.  That consideration is absent from any of the reasons given by the magistrate.

29.  It comes to this:  that such was the passage of time, such was the nature of the incident with the recent complaint not relating one of its major alleged mischievous ingredients, and such was the situation in the family as time went by, with the visit to the social worker and the worry about custody and the like, that I cannot say on the evidence before me that I am sure that this incident may not have been exaggerated and made to bear more weight than it truly deserves.

30.  I do have a reasonable doubt about the conviction here, and it follows that I therefore must allow the appeal.

31.  Before leaving the case, I want to turn to this:  the trial commenced on 21 May.  It ran into 22 May, when the vulnerable witness, PW1, was still giving evidence.  The cross-examination had not finished.  The matter had to be adjourned.  I can see from the transcript that the proposal was that the matter go to July.  The witness herself then intervened and said that the case was causing her problems - it was disturbing her and disrupting her schoolwork, and she had exams in July.

32.  Now, instead of remembering the Practice Direction that said in these vulnerable witness cases, the case must have listing priority, what happened was that diaries were consulted and dates - and I find this hard to believe - on 28 and 29 August were selected for the continuation of the cross-examination, three months away.  Anyone, it seems to me, who began to apply their mind to what was right and sensible to do here, especially in the light of the Practice Direction, would have said, that this case goes on tomorrow, and it would have continued, at least, until the conclusion of PW1’s evidence.

33.  I want to express myself in strong terms.  These cases concerning vulnerable witnesses require special treatment.  I regard an adjournment of three months in the course of the main prosecution witness’ evidence to be something that is highly undesirable in any event, but in a case with a vulnerable witness it should never have happened.  When principal magistrates set these cases down, they must ask for realistic estimates from the parties involved, and if the realistic estimate is exceeded, the estimators have only themselves to blame.  Principal magistrates must direct such case will go on and run to their conclusion and will not go off part-heard to suit the diaries of the lawyers involved.

34.  Mr Wong, in defending his corner for the respondents here, says, “Well, really, this is done for the defence, because the prosecutors are always available.”  That may well be right, but the prosecutor should have objected to the adjournment and brought the Practice Direction to the Court’s attention.

35.  May I say of defence counsel at trial (not counsel today for the appellant) that there was no urging by him or special pleading for dates when the question of the lack of time arose in May.  It was just assumed that diaries would be consulted and a future date be found.  It was not a case of him urging any particular course as to the date.

36.  The conviction is quashed.  The sentence that was imposed was one of 3 months’ imprisonment.  That has in fact long been served.  It is not an appropriate case in which to consider a retrial.  The application for costs that I can see Mr Raffell is about to make I shall grant unless Mr Wong objects.

(Submission on costs)

37.  There will be an order that the appellant can have his costs to be taxed if not agreed.

(Submission on previous costs)

38.  That order I make is for costs here and below.